论国际舆论对国际法的影响——兼析对解决东海南海岛屿争端的启示

国际舆论作为国际社会一股重要的力量,不仅有其区别于一般舆论的特性,而且通过与人类核心价值观念、国际法渊源和国际争端解决的联系,对国际法产生了全面而深刻的影响。国际舆论与国际法相互影响,并对国际争端的解决产生巨大作用。随着东海南海岛屿争端的加剧,诉诸国际法成为解决争议的最好办法。但单纯依靠法律方法解决争端仍然具有一定的局限性,而在国际法框架内充分调动国际舆论的积极因素,不失为解决此类岛屿争端的明智选择。在中菲南海仲裁案中,中方应重视对于国际舆论主导权的争夺。     

The politics of self-defence: beyond a legal understanding of international norms

This contribution considers an alternative approach to the research on the use of force, a field that has been largely dominated by international legal scholars. I argue for application of an evolutionary approach to international (legal) norms, one that complements current legal approaches and moves the discussion of norms beyond their dichotomous legal/illegal understanding. This kind of research highlights the role of politics in international law and allows us to determine factors influencing dissemination of international norms. Through a study of seven post-Second World War cases, I trace the development of both narrow and expanded notion of preemptive self-defence and conclude that while ascertaining legality of specific actions is vital for understanding established international law, one cannot talk about radical breaks in development of the law on the use of force. The expanded concept is in fact a product of the evolution of (societal) norms on self-defence and an accumulation of previous successful challenges in metanorms on the use of force.     

Russia-Georgia Conflict and Beyond

Yet another Post 9/11 historical event indicating a significant turning point in the Post-Cold War era, Russia-Georgia conflict represents a remarkable change in the international strategy of a resurgent Russia. It also signifies that former Soviet republics are still groping for a new identity and that a new round of realignment will persist in the vast Eurasia region. The conflict reveals declining U.S. global control, flawed European integration, and NATO embarrassment. To a certain extent, it exposes chaos brought about by international nonpolarity and world governance vacuum. It also highlights what serious consequences can a double standard inflict on the principles of international law. A reasonable arrangement for global security and economic growth is therefore challenging the resolve and wisdom of international strategists. Actually fierce geopolitical rivalry for energy resources is at work behind the Russia-Georgia conflict. This will further compound the international energy strategic environment.     

印度现代化进程中的社会风险问题及其治理研究

在世界风险社会形成的今天,任何一个国家都被迫直面现代性或第二次现代性所带来的巨大压力。与其他国家相比,印度所面临的风险环境带有更为复杂的多重特征。作为国情类似的后发国家,将印度与中国的社会风险状况进行比较,无疑会对印度的社会现实获得更为清晰的认识和判断。在此基础上,本文建议从法制、信息化管理、人口就业政策、社会机制、国际安全合作等方面对印度现行制度框架进行调整,为印度这样一个社会结构特殊的国家早日迈入现代化提供一个风险治理的视角。     

Can contingency be ‘internalized’ into the bounds of theory? Critical realism,the philosophy of internal relations and the solution of ‘uneven and combined development’

Can general mechanisms governing social life (necessity) and the possibility of multiple outcomes in socio-historical processes (contingency) be incorporated into a single theoretical framework? In recent years, the critical realist philosophy of science has emerged as an intellectual strand within international relations (IR) that makes theoretical claims about necessary social processes while recognizing the irreducible role of contingency. However, critical realist scholars treat contingency as an ‘externality’, thereby declining to theorize social processes that result in contingent outcomes. Here, it is argued that contingency emerges out of the combination of events and processes as theorized by the law of uneven and combined development. This provides a general conceptualization that treats differentiated historical outcomes, and their contingencies, as inherent to human development. Out of these assumptions a workable approach to historical sociology in IR can be developed—one predicated upon uncovering the form of historical ‘combination’, the contingent fusion of elements, in international systems.     

Terrorism and fear: do terrorists really want to scare?

There is a widespread tendency among academics, state institutions and international organisations to regard intention to cause fear and intimidation as a key definitional characteristic of terrorism. This article argues that such a conceptualisation of terrorism is unfounded. A survey of mainstream terrorist doctrines (propaganda by the deed, foco theory–urban guerrilla warfare and armed propaganda, and jihadist doctrines) and writings of several pre-eminent terrorist ideologues provides little evidence to suggest that the main tactical goal of terrorism is to spread fear and intimidation. Rather, regardless of their ideological orientation and the historical period in which they operated, terrorists seem to be preoccupied with similar goals: mobilising what they regard to be their constituency, avenging their fallen comrades, extracting retribution for their allegedly wronged constituency, or, simply, with the physical destruction of their perceived enemies. This survey is complemented with a number of “crucial case studies”, where “most-likely cases” of terrorist justification of indiscriminate attacks and a detailed analysis of terrorist literature, which explicitly deals with the question of “fear”, are used to test the validity of the claim that terrorists aim to cause fear and intimidation. In both type of cases the hypothesis is invalidated. In cases of justification of indiscriminate attacks, there is no evidence to suggest that the aim of the terrorists is to spread fear and intimidation. Moreover, in the case of one particular terrorist ideologue who explicitly addresses the question of fear, the analysis of the texts indicates that fear among a population is not seen as an aim to be achieved but as an obstacle for mass mobilisation: an obstacle, which can only be overcome by the terrorist tactics. Thus, in this particular “most-likely case” the aim of terrorist tactics turns out to be encouraging masses for insurrection rather than intimidating them.     

When do NGOs Matter? Activist Organisations as a Source of Change in the International Debt Regime

Who drives change in international economic regimes? While mainstream International Political Economy scholarship has traditionally focused on the major players within states and markets as the key sources of political and economic change, recent studies have sought to highlight the important role that is also played by a wider range of social actors. A common point of reference here is the activities undertaken by non-governmental organisations (NGOs), with the campaign to put debt relief for heavily indebted poor countries on the global agenda being often cited as the exemplar of a civil society success story. This article explores the mechanisms through which the international sovereign debt regime for the world's poorest and most indebted economies has changed over the last 15 years, with increasing acceptance that large-scale debt relief was appropriate for a select group of countries leading to the establishment of the heavily indebted poor countries (HIPC) Initiative in 1996 and the Enhanced HIPC Initiative in 1999. Through tracing how international NGOs were able to shape the reform agenda with respect to the international sovereign debt regime for low-income countries, the article seeks to enhance our understanding of when, why, and how NGOs can potentially act as an important source of change in international economic regimes.     

For better? For worse? Humanitarian aid in conflict1

Humanitarian aid should be judged against international humanitarian law (IHL), which gives civilians certain basic rights, including protection in armed conflicts. Aid agencies should consider the various side-effects of their interventions, in order to assess the net impact and decide whether to work in any given situation. They have no responsibility to provide aid where the net impact is negative, or to those who violate international law. If governments fail in their responsibilities to protect civilians, this does not give aid agencies the responsibility of filling the vacuum; but it does mean that they should campaign for governments to act. Current Northern debate on support for the citizens of countries in conflict is usually expressed in terms of charity, rather than a response to what people are doing for themselves. Aid agencies should help to change this.     

Attitudes toward Consent-Based and Non-Consent-Based International Law in a Regional Power Context

International legal scholars have identified and argued for and against new forms of non-consent-based international law. We study variation in Brazilian public opinion about adherence to international law created in three different ways: through a consent-based multilateral treaty, by the U.N. Security Council with the participation of Brazil, and by the U.N. Security Council without the participation of Brazil. Information that Brazil has participated in creating the international legal obligation through a multilateral treaty or membership on the Security Council yields levels of support for adherence to the legal obligation that are similar to those found when the origins of the legal obligation are generic. Information that the international legal obligation was created without Brazil’s participation, on the other hand, results in reduced support for compliance. This difference, which is particularly concentrated among highly educated respondents, is not driven by reduced concerns about reputational consequences or sanctions. Our results suggest that the increased use of non-consent-based forms of international law might be challenged by a lack of public support for compliance.     

Can We Win a War If We Have to Fight by Cosmopolitan Rules?

After months of bombing, NATO achieved only a stalemate in Libya. That disappointing result may reflect NATO's commitment to respect “international humanitarian law,” now understood to impose severe limits on military operations that might harm civilians. This body of rules is a departure from traditional understandings of the law of war. The embrace of these inhibiting rules raises serious questions about whether western nations are now prepared to fight and win actual wars.     

Civilizing interventions? Race,war and international law

Over the past decade there has been an explosion in literature on imperialism and international law. This scholarship has focused on the use of force, especially humanitarian intervention and the war on terror. These accounts foreground the issue of race, arguing that these legal arguments reproduce the dynamic of the civilising mission. This article argues that such analyses miss some key elements. Contemporary interventions must be counterposed to the First Iraq War, which was enabled through the uncontroversial authorization of the Security Council. Humanitarian intervention and the war on terror emerged in reaction to the fear that other states would veto Security Council resolutions. Consequently, the ‘racial’ discourse around intervention cannot simply be read as ‘othering’ the peripheries, but was also a response to inter-imperialist rivalry. The article then advances a conception of the arguments as an attempt to articulate hegemonic coalitions against emerging rivalries, and reads racialization in this light.     

驳超国家组织论——兼论欧洲联盟的性质

2004年10月28日，欧盟成员国领导人在意大利罗马签署了《欧洲宪法条约》。因为该法律文件的形成过程带有一定的“民主性”，其功能超越了一般国际组织的章程，所以它具备主权国家宪法的一些属性。国内外学者对欧盟的性质认识不一，这就使得越来越多的人认为欧盟是超国家组织，从而误解了欧盟的性质。     

对俄罗斯国际私法立法的评介及借鉴

前苏联解体后,俄罗斯根据对外民事交往的形势和需求,构建了新的国际私法体系。与前苏联相比,俄罗斯国际私法在立法形式上并没有重大突破,但在立法内容上,调整范围大为拓宽、意思自治原则应用的领域也更为广阔、最密切联系原则成为准据法确定的基本原则、诸多冲突规范均有实质性的改变。俄罗斯新的国际私法立法,对与其立法背景大体相同或相似的当前中国国际私法立法具有重要的借鉴意义。     

Non-compliance by design: Moribund hard law in international institutions

States often create international institutions that impose legally binding rules on member states, and then do not even attempt to enforce these rules. Why? In this article, we present a game-theoretic model of moribund hard law in international institutions. We show that if some states face domestic pressure to negotiate a hard law treaty, their incentive to insist on hard law in the negotiations is maximized when less enthusiastic states expect that the hard law will probably not be enforced. Domestic proponents of hard law reward states for negotiating a hard law treaty, while states that oppose hard law can accept it because they expect no enforcement. As a form of informal governance, moribund hard law allows non-compliance by design.     

The political economy of stalemate: organised crime,corruption and economic deformation in post-Dayton Bosnia

‘The biggest security threat to this country is not nationalism; it’s criminality, corruption and unemployment'2 More than seven years after the end of the Bosnian war and despite some $5 billion in international reconstruction assistance, Bosnia's economy remains stagnant and dysfunctional, while the country is rapidly gaining a reputation not as an emerging market economy but as a lawless and ungovernable state dominated by organised crime and corruption. This paper assesses Bosnia's post-Dayton political economy, arguing that the nexus between organised crime and corruption, on the one hand, and nationalist political forces, on the other, represents the most significant obstacle to the development of a market economy in Bosnia and poses a growing threat to the country's peace process. This situation is the product of Bosnia's particular post-war and post-socialist environment, which has created a powerful class of elites with an interest in perpetuating the status quo of a largely unreformed economy. In this context, international efforts to impose economic reforms from above, and to encourage local authorities to embrace a reformist marketisation and rule of law agenda, have met with little success. The paper concludes by suggesting that international peace building efforts need to pay greater attention to the ‘enforcement gap’ that has en abled crime and corruption to flourish in Bosnia.     

美日住房权保障经验及对我国的启示

住房权是联合国规定的重要的公民权利,是基本人权。我国1997年签署并于2001年加入《经济、社会和文化权利国际公约》,承诺为实现公民的住房权而努力。而迄今为止,并没有制定一部有关住房权保障方面的法律,近年来由于房价的攀升和全国人大将《住房保障法》列为立法规划之一,引起学界对住房权、住房权保障问题的热议。美日两国的经验教训表明,公民住房权的实现,仅仅依据公民的自我努力是不够的,要使我国公民的住房权真正实现,就要借鉴发达国家的经验和教训,在承担国际义务的前提下根据我国的国情,将政府保障公民住房权的义务上升为法律义务,通过法律保障措施来明确国家责任、政府责任,只有将两者紧密结合,才能促进公民实现住房权。     

Dissolving the difference between humanitarianism and development: The mixing of a rights-based solution

The conventional (but false) dichotomy between humanitarianism and development, hitherto grounded in the perceived differences between international humanitarian law and international human rights law, respectively, is not merely unhelpful in practical terms but also serves to diminish our understanding of the shared issues underlying the two discourses. There are welcome signs, however, of a growing recognition that all development and relief work is essentially rights-based, and of efforts to integrate thinking and practice under one common set of principles.     

我国与东盟国家双边投资保护制度分析

2002年11月4日，中国与东盟国家在柬埔寨首都金边正式签署了《中国-东盟全面经济合作框架协议》，确定了中国-东盟自由贸易区经济合作与交流的基本框架。这标志着中国-东盟自由贸易区（简称为CAFTA）进程的正式启动，在中国与东盟的关系史上树立了一个新的里程碑，中国与东盟的经济合作进入了全面发展的历史新阶段。尤其是2004年中国-东盟自由贸易区建设启动以降低关税为核心的早期收获计划以来，     

Sovereignty and the Foreign Fighter Problem

Sovereignty is the bedrock of international law. If security requires that the United States transgress sovereign borders to attack foreign fighters and their support networks hiding in third countries, then the U.S. should adopt a strategy to amend international law accordingly. One should not be too quick, however, to disregard a robust notion of sovereignty, a concept that has helped avert conflict among the world's major powers. The United States needs a strategy for sovereignty's future that is based in the emerging security context and a prioritization of American interests. Instead, the United States and the rest of the world are meandering toward a less robust sovereignty with weaker and more ambiguous international law. The U.S. and its global interests would be better served by strong and clear international rules that increase predictability and that confer legitimacy to action against dangerous enemies.